In the Matter of: Marquette Transportation Company, LLC
FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge Eldon E. Fallon on 2/14/18.(dno)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN RE: MARQUETTE TRANSPORTATION COMPANY,
FINDINGS OF FACT AND CONCLUSIONS OF LAW
FACTUAL AND PROCEDURAL HISTORY
This case arises out of a December 29, 2014 allision between barges in the tow of M/V
MYRA ECKSTEIN, a tugboat owned and operated by Marquette Transportation Company, LLC
(“Marquette”), and barges MISS DARLENE and MISS ASHLEY, owned by Monticello
Equipment Corporation (“Monticello”) and operated by Kostmayer Construction, LLC
(“Kostmayer”). At the time of the allision, Marquette was operating the M/V Myra Eckstein near
the CEMUS Dock Facility located on the East Bank of the Mississippi River in Baton Rouge, LA.
The M/V Myra Eckstein “contacted” the two crane barges operated by Kostmayer. At the time of
the accident, the MISS DARLENE crane barge was spudded down off the East Bank of the
Mississippi River, in relation to work Kostmayer was completing on an upriver mooring dolphin
attached to the CEMUS dock near the 190 bridge in Baton Rouge at mile post 233.8 AHP. The
MISS ASHLEY was secured to the CEMUS dock. Plaintiffs Joseph Solomon (“Solomon”) was
employed by Ameri-Force Craft Services, Inc. (“Ameri-Force”) and assigned to work for
Kostmayer. At the time of the accident, Solomon was working on the MS Ashley, one of the crane
barges involved in the allision.
On June 25, 2015, Marquette filed for limitation of liability relating to this incident. R.
Doc. 1. On July 31, 2015, Solomon answered the limitation of liability as a claimant. Solomon
avers that when the M/V Myra Eckstein allided with the barge where he was working, he
sustained personal injuries. Solomon seeks various damages, including loss of earnings and
earning capacity, pain and suffering, and mental anguish and emotional trauma. Solomon also
brought a third-party claim against Kostmayer as his Jones Act employer. He seeks damages
under the Jones Act, 46 U.S.C. § 30104, and general maritime law.
On January 6, 2016, Interested Builders Risk Underwriters (“IBRU”) answered
Marquette’s limitation in liability as a claimant. IBRU was an insurer of Kostmayer for the
barges and dock involved in the allision. IBRU claims that it is legally and/or contractually
subrogated to the rights or claims of Kostmayer by virtue of payment of claims for the damage
caused by the allision.
This matter came on for trial without a jury on the liability portion of the case on
February 8, 2018. The trial lasted two days. The Court has carefully considered the testimony of
all of the witnesses, the exhibits entered into evidence during the trial, as well as the record.
Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court hereby enters the
following findings of fact and conclusions of law. To the extent that any findings of fact may be
construed as conclusions of law, the Court hereby adopts them as such. To the extent that any
conclusions of law constitute findings of fact, the Court adopts them as such.
FINDINGS OF FACT
Marquette Transportation Company, LLC (“Marquette”) is a company in the marine
transportation business. It regularly moves cargo in barges along the inland waterway including
the Mississippi River. Marquette is the owner of the M/V MYRA ECKSTEIN. Marquette was
the employer of the crew, including the Captain (Keith Trout), aboard the M/V MYRA
ECKSTEIN on December 29, 2014.
Ameri-Force Craft Services, Inc. (“Ameri-Force”), is a domestic corporation that in part
provides skilled professionals and laborers to the marine, industrial, heavy construction industry.
Signal Mutual Indemnity Association, Ltd. (“Signal”), is a group self-insurer, authorized
by the Department of Labor to discharge the liability of its members, including Ameri-Force,
under the Longshore and Harbor Workers’ Compensation Act 33 U.S.C. 901 et seq. (LHWCA)
as a result of injuries to their employees.
Kostmayer Construction Company, LLC (“Kostmayer”) is an industrial construction
contractor and its operations include maritime construction within the State of Louisiana.
Joseph Solomon is a resident of Ascension Parish, Louisiana and has worked most of his
life as a welder and fitter on industrial construction projects, some of which were maritime in
On February 17, 2014, CEMUS contracted with Kostmayer for the performance of repairs
to the CEMUS dock facility (the “CEMUS project”), with the condition that Kostmayer was
obligated to obtain all necessary permits and ensure the work was performed pursuant to the
permits. Kostmayer received specifications showing the 1998 plans (Drawing 19430-10 shows a
200-foot walkway) and a separate drawing in the same bid package (19430-52) that shows the
extension for two ships to the property line. The 2012 plans, through drawing 19430-52, positioned
the UMD 285 feet upriver from the Upper Dock, 85 feet further upriver than shown in the 1998
plans approved by the Corps of Engineers. While work was performed at the UMD and Upper 9
Dock, Kostmayer was also involved in construction work at the lower end of the dock. The
construction work began in July 2014 and was progressing at the time of the December 29, 2014
In order to complete the CEMUS project, Kostmayer utilized a fleet of barges, some of
which it owned and others which were leased but were under the direction and control of
Kostmayer, including the MISS ASHLEY and MISS DARLENE. Kostmayer also hired some
employees through Ameri-Force. One such employee, Joseph Solomon, filled out his application
on September 26, 2014, and was hired as a structural fitter. Beginning the following week,
Solomon commenced working from Kostmayer barges repairing and constructing the dock.
Solomon was supervised by Kostmayer employees, Kostmayer provided tools and other
equipment for him to perform his tasks, and Solomon was directed by Kostmayer employees at
the CEMUS project. Mr. Solomon had never worked under the direct and/or control of Kostmayer
before he began working on the CEMUS project.
At all relevant times, Solomon was the payroll employee of Ameri-Force and the borrowed
employee of Kostmayer. From October through the time of the incident, Solomon worked almost
exclusively from the man-lift on one barge, the MISS ASHLEY. The MISS ASHELY was 30 feet
wide and 120 feet long with a raked bow. The MISS ASHLEY was outfitted with a man-lift and
cherry picker which were utilized by the Kostmayer employees to work on the CEMUS dock. The
MISS ASHLEY was moved by a tug into position along the dock. It was periodically moved and
repositioned as the work progressed. When the barge was moved, Solomon, among other
employees, assisted with the lines and positioning equipment to allow the barge to be moved
safely. Solomon worked as a structural fitter, repairing and constructing the dock structure by
removing old metal framework and installing new beams and supports. This work was conducted
using the man-lift to access and remove the damaged portions of the dock. The new pieces were
measured and cut from the deck of the barge. These pieces were raised with the cherry picker and
then fitted into place from the man-lift. On occasion, structural fitters would complete some of this
work from the scaffolding attached to the dock. However, Solomon rarely worked from the
scaffolding. The MISS ASHLEY was equipped with a cherry picker crane and a man-lift,
including a built-in generator, and all other equipment necessary to complete the fitting tasks. The
fitting tools were stored in a seacan on the barge. Additionally, the employees working on the
barge, including Solomon, were provided and required to wear a work vest equipped with
floatation for their safety.
At the time of the December 29, 2014 accident, Solomon worked from the man-lift,
equipment installed on the MISS ASHLEY throughout his employment, as the barge was
operating from the Mississippi River. Except for a few times during his employment, he always
worked from the MISS ASHLEY which utilized both the man-lift and a cherry-picker to
construct the dock throughout the CEMUS project. Between October and the time of the accident
in December 2014, all of the structural fitting and work he performed occurred from the barge.
He never worked from the dock to remove the damaged decking. Instead, he used the man-lift
positioned on the barge MISS ASHLEY, almost exclusively to remove this old material.
Solomon’s work as a fitter for Kostmayer/Ameri-Force was essential to accomplishing the
mission of the MISS ASHLEY, namely constructing the dock structure by removing old metal
framework and installing new beams and supports.
On December 29, 2014, Marquette’s tugboat, M/V MYRA ECKSTEIN, was proceeding
down bound on the Mississippi River pushing a fleet of 35 standard river barges, 5 barges long
and barges wide. The barges assemblage measured approximately 245 feet in width and 1000
feet in length. The tug generated 7200 horsepower. Captain Keith Trout was the captain on
watch aboard the M/V MYRA ECKSTEIN on December 29, 2014. Prior to reaching the 190
bridge, the M/V Myra Eckstein came around Wilkerson Point, which is a hair over a mile from
the US 190 bridge. Captain Trout visually observed the Kostmayer barge from a distance of 1
mile. The Kostmayer barge was also visible on the Captain’s radar at a distance of 1 mile. As the
M/V MYRA ECKSTEIN navigated through a standard location for passage under the Highway
190 Bridge between the number 1 and 2 bridge spans, it allided with Kostmayer’s barge, MISS
DARLENE, spudded on the center channel side of an upriver mooring dolphin (“UMD”) under
construction by Kostmayer and continued down river and struck the MISS ASHLEY which was
moored to the CEMUS dock.
Prior to December 29, 2014 allision, Captain Trout had transited under the US 190 bridge
30 to 50 times. Captain Trout had been through the bridge southbound within a month of the
incident. When the Captain last passed through the area there were barges in the vicinity of the
mooring dolphin. Captain Trout knew about the ongoing work being performed upriver of the
CEMUS dock prior to arriving in the area on December 29, 2014. Captain Trout had passed the
location in the past and observed the work being performed on the dock from moored barges. In
addition, Marquette had created a River Conditions Summary that informed Marquette’s captains
of hazards on the river referencing the locations of the hazards by river mile. By August 11,
2014, Marquette had disseminated a River Conditions Summary to its captains that specifically
identified the construction at the CEMUS dock as a high risk hazard.
Captain Trout’s original plan was to navigate the tug and tow as close as possible to the
western leg/support column of the US 190 bridge, referred to as pier number 2. He state that as
he rounded the bend at Wilkerson Point he was deeper in the bend than he intended and came
close to striking a dock upriver from the 190 bridge. After coming around Wilkerson Point,
Captain Trout visually observed the Kostmayer barge moored to the upriver mooring dolphin at a
distance of 1 mile. Captain Trout stated that while at the controls of the MYRA ECKSTEIN, he
lost focus on the task at hand. After coming around Wilkerson Point, Captain Trout focused
solely on the barge that was alongside the mooring dolphin and lost situational awareness.
Captain Trout testified, “I was focused on that (the barge) and wasn’t paying attention to the task
at hand.” As a result, Captain Trout navigated the MYRA ECKSTEIN too close to the east bank
of the river. The starboard corner of the MYRA ECKSTEIN barge was approximately 200 feet
from pier number 2 while Captain Trout intended be closer than 100 feet from the pier.
No adverse weather conditions or traffic conditions prevented Captain Trout from
piloting his tow more towards the middle of the river. It was an average day, visibility was good,
there was no fog or rain, the winds were light, 5 mph and, notably, the current was very minimal,
less than 2 mph. When the M/V MYRA ECKSTEIN came around Wilkerson Point there was no
traffic between her and the US 190 Bridge. The M/V MYRA ECKSTEIN was not meeting any
northbound upriver traffic, no other traffic was coming through the bridge, there was no moving
vessel traffic, and there was nothing in the water obstructing the path of the M/V MYRA
Kostmayer had two barges onsite, which were struck by the Marquette tug and tow: the
first, the MISS DARLENE, was a crane barge moored beside the upriver mooring dolphin while
the second, the MISS ASHLEY, was a smaller barge equipped with a “cherry picker” crane and
a man lift and was moored beside the dock down river from the mooring dolphin. The
dimensions of the crane barge, MISS DARLENE, are a length of 145 feet and breadth of 70 feet.
She has a raked bow for ease of movement.
Just beneath the 190 bridge, the M/V MYRA ECKSTEIN struck the crane barge
positioned beside the upriver mooring dolphin with the port-side front corner of her foremost
barge under tow. The M/V MYRA ECKSTEIN then traveled down river and struck the barge
with the cherry picker and man lift pushing the barge into the dock. The M/V MYRA
ECKSTEIN then continued downriver to a fleet in College Town to deliver several barges.
At the time of the incident, most of Kostmayer’s employees had left the scene for lunch.
No Kostmayer employee was assigned as a lookout, and no construction supervisor or vessel
watchstander was monitoring the river. Additionally, Kostmayer did not alert the Coast Guard of
the position of its barges during construction or direct a tug to communicate with oncoming river
CONCLUSIONS OF LAW
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1333, which provides
original jurisdiction over admiralty or maritime claims, and the Jones Act, 46 U.S.C. § 30104.
Venue is proper because the Defendants are subject to the personal jurisdiction of this Court.
The parties have designated this matter as an Admiralty and Maritime claim within the
meaning of Federal Rule of Civil Procedure 9(h), and as such, this matter is appropriately being
tried to the bench as opposed to a jury.
The matters before this Court include determination as to whether Joseph Solomon was a
Jones Act seaman at the time of the December 29, 2015 accident, whether Marquette and/or
Kostmayer were negligent under the Jones Act and general maritime law, and whether the vessel
the MISS ASHLEY was unseaworthy under general maritime law.
The Supreme Court has determined that seaman status requires: (1) that the employee’s
duties contribute to the function of a vessel in navigation (or identifiable group of vessels) or to
the accomplishment of its mission and (2) that the connection be substantial in terms of both its
nature and duration. See Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995). The purpose of the
test is to “separate the sea-based maritime employees who are entitled to Jones Act protection
from those landbased workers who have only a transitory or sporadic connection with a vessel in
navigation, and therefore whose employment does not regularly expose them to the perils of the
Solomon was a borrowed employee of Kostmayer, working as directed by Kostmayer
supervisors on and from equipment provided and operated by Kostmayer. The MISS ASHLEY
and other barges utilized by Kostmayer were vessels under the general maritime law. By virtue
of his assignment to and substantial performance of his work aboard the MISS ASHLEY, a
vessel in navigation, Solomon had a connection to the barges which was substantial in nature and
duration; during his employment all of his work was performed from the MISS ASHLEY; his
work advanced the function of the MISS ASHLEY whose mission was to serve as a construction
vessel. Therefore, he is a seaman, with the right to assert a Jones Act negligence claim, and a
general maritime law unseaworthiness claim, against his borrowed employer Kostmayer.
Solomon also had the right to assert a general maritime law negligence claim against Marquette.
Under general maritime law, there is a long-standing presumption that, when a moving
ship collides with a stationary object, the moving ship is at fault. The Oregon, 158 U.S. 186, 19293 (1895). “The rule of The Oregon creates a presumption of fault that shifts the burden of
production and persuasion to a moving vessel who, under her own power, allides with a
stationary object.” Combo Maritime. Inc. v. U.S. United Bulk Terminal, LLC, 615 F.3d 599, 604
(5th Cir. 2010). The moving ship in an allision case may rebut the presumption of fault by
showing, with a preponderance of the evidence, that the collision was the fault of the stationary
object, that the moving ship acted with reasonable care, or that the collision was an unavoidable
The Pennsylvania Rule is “a presumption in admiralty law that a statutory violation by a
party to a collision is a cause of the damage unless it is established that the violation could not
have caused or contributed to the collision.” Am. River Trans. Co. v. Kavo Kaliakra SS, 148 F.3d
446, 449 (5th Cir.1998). For the Pennsylvania Rule to apply, three elements must exist: (1) proof
by a preponderance of evidence of violation of a statute or regulation that imposes a mandatory
duty; (2) the statute or regulation must involve marine safety or navigation; and (3) the injury
suffered must be of a nature that the statute or regulation was intended to prevent. See United
States v. Nassau Marine Corp., 778 F.2d 1111, 1116–17 (5th Cir.1985). As established in The
Pennsylvania, 85 U.S. 125 (1874), where a party violates a statute or regulation intended to
avoid collisions, that party must prove its conduct not only might not have caused the accident,
but it could not have caused the accident:
The Pennsylvania Rule requires the violator of a statute to show not only that its
conduct was not a contributing cause of the collision, but that it could not have
been a cause of the collision. The Pennsylvania Rule clearly applies to
[wharves] as well as vessels.
Florida E.C.R. Co. v. Revilo Corp., 637 F.2d 1060, 1064 (5th Cir. 1981).
In order to build a structure on the navigable waters of the United States, a permit for the
anticipated structure must be obtained:
The creation of any obstruction not affirmatively authorized by Congress, to the
navigable capacity of any of the waters of the United States is prohibited; and it
shall not be lawful to build or commence the building of any wharf, pier,
dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port,
roadstead, haven, harbor, canal, navigable river, or other water of the United
States, outside established harbor lines, or where no harbor lines have been
established, except on plans recommended by the Chief of Engineers and
authorized by the Secretary of the Army.
33 U.S.C. § 403. The authority of the Federal Government to exercise control over navigable
waters is established in the Constitution:
All navigable waters are under the control of the United States for the purpose of
regulating and improving navigation, and although the title to the shore and
submerged soil is in the various states and individual owners under them, it is
always subject to the servitude in respect of navigation created in favor of the
Federal Government by the Constitution.
United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 63 (1913) (quoting Gibson v.
United States, 166 U.S. 269, 271 (1897)).
The Pennsylvania rule shifts the burden of proof as to causation. Green v. Crow, 243 F.2d
401, 403 (5th Cir. 1957). “This rule provides that when a ship violates a statutory rule of
navigation intended to prevent collisions, ‘the burden rests on the ship of showing not merely
that the fault might not have been one of the causes, or that it probably was not, but that it could
not have been.’” Otto Candies, Inc. v. M/V Madeline D, 721 F.2d 1034, 1036 (5th Cir.
1983) (quoting The Pennsylvania, 86 U.S. 125, 136 (1873)). The Pennsylvania Rule applies to
breaches of a permit issued by the Corps. See Orange Beach Water, Sewer and Fire Protection
Authority, 680 F.2d 1374, 1383 (11th Cir. 1982) (citing American Zinc Co. v. Foster, 313 F.
Supp. 671 (S.D. Miss. 1970), modified on other grounds, 441 F.2d 1100 (5th Cir. 1971), cert.
denied, 404 U.S. 855 (1971)).
To establish a claim for negligence under the general maritime law, the plaintiff must
prove “that there was a duty owed by the defendant to plaintiff, breach of that duty, injury
sustained by [the] plaintiff, and a causal connection between the defendant’s conduct and the
plaintiff’s injury.” In re Cooper/T Smith, 929 F.2d 1073, 1077 (5th Cir. 1991). The existence and
scope of a duty under the general maritime law turns primarily on “the foreseeability of the harm
suffered by the complaining party.” Consol. Aluminum Corp. v. C.F. Bean Corp., 833 F.2d 65,
67 (5th Cir.1987). In maritime collision cases, “fault which produces liability must be a
contributory and proximate cause of the collision, and not merely fault in the abstract.” Bd. of
Comm’rs of Port of New Orleans v. M/V FARMSUM, 574 F.2d 289, 297 (5th Cir. 1978). “To
give rise to liability, a culpable act or omission must have been ‘a substantial and material factor
in causing the collision.’” Am. River Transp. Co., 148 F.3d at 450 (quoting Inter-Cities Navig.
Corp. v. United States, 608 F.2d 1079, 1081 (5th Cir. 1979). Physical damage to shore structures
and to fixed objects such as the dock in question is compensable. Where the damage is reparable,
there is liability for reasonable repairs. See City of New Orleans v. American Commercial Lines,
Inc., 662 F.2d 1121 (5th Cir.1981).
The Rivers and Harbors Act prohibits vessels from become “obstructions” in an effort to
prevent collisions. It provides, in relevant part: “It shall not be lawful to tie up or anchor vessels
or other craft in navigable channels in such a manner as to prevent or obstruct the passage of
other vessels or craft.” 33 U.S.C. § 409. “Obstruction” is defined as “anything that restricts,
endangers, or interferes with navigation.” 33 C.F.R. § 64.06. The percentage of the width of the
waterway which is not obstructed is significant in determining whether the waterway is
obstructed under the Act. See Williamson Leasing Co., Inc. v. American Commercial Lines, Inc.,
616 F. Supp. 1330, 1338 (E.D. La. 1985).
The Rivers and Harbors Act, 33 U.S.C. § 403, is a statute that involves marine safety or
navigation. See Mike Hooks Dredging Co., Inc. v. Eckstein Marine Service, Inc., et al, 2012 WL
1070106, at * 5 (E.D. La. Mar. 29, 2012). The Rivers and Harbors Act specifically prohibits
obstructions to the navigable capacity of any waters of the United States. 33 U.S.C. § 403. A
violation of the Rivers and Harbors Act triggers the Pennsylvania Rule relating to obstructions.
See Crowley v. Costa, 924 F. Supp. 2d 402, 418-419 (D. Conn. 2013).
Kostmayer was obligated to ensure the UMD was properly permitted, and was
constructed in accordance with such permit. The permit obtained by CEMUS in March, 2013
allowed construction of the UMD 200 feet upriver from the Upper Dock pursuant to the 1998
plans submitted to the Corps of Engineers in October 2012. Kostmayer, however, constructed the
UMD 285 feet upriver from the Upper Dock. Kostmayer violated the terms of the permit by
constructing the UMD in a location outside the area allowed by the Corps of Engineers.
The Court finds that Kostmayer violated the permit by constructing further upriver than
allowed by the permit and that triggers statutory fault. Initially, the permit approved by the Corps
requires CEMUS, the dock owner, and Kostmayer, the repair contractor, to comply with
conditions related to safe navigation. The permit states that the work should not create an
obstruction to safe navigation. A maintenance permit, just like a general permit and modification
approvals, also requires the owner/contractor to issue Notice to Mariners and not to obstruct
navigation. The permit also specifically addresses that if the project includes “any additional
work” not authorized herein, the permittee “must apply for an amendment.” This violation
justifies application of the Pennsylvania Rule. Kostmayer’s conduct was negligent, and it failed
to carry its burden under the Pennsylvania Rule to prove that its violations could not have caused
Kostmayer was also negligent in failing to alert the Coast Guard about the position of its
barges during the course of construction on the dock and its failure to utilize an assist vessel to
communicate with river traffic and warn employees of impending allisions. Thus, the Court
concludes Kostmayer’s conduct was a negligent cause of the accident.
IBRU is a subrogee of Kostmayer by virtue of a contractual subrogation clause contained
in its policy. By proceeding on a subrogation claim, IBRU’s rights and claims against Marquette
are no greater than those of Kostmayer. The negligence of Kostmayer directly impacts IBRU’s
subrogation claim. A party claiming by way of subrogation has no greater rights than the party
from whom the claim was obtained. Therefore, IBRU’s claim against Marquette must be reduced
by the percentage of Kostmayer’s liability for the accident.
Furthermore, the Inland Navigation Rules apply to vessels on the Mississippi River. See,
e.g., Transorient Navigators Co., S.A. v. M/S SOUTHWIND, 714 F.2d 1358 (5th Cir.1983).
The Inland Navigational Rules (“INRs”), 33 C.F.R. § 83.01 et seq., impose a duty of care on
vessel owners and operators to operate such vessels under the “rule of good seamanship” and in a
safe and seaworthy manner. See Thomas J. Schoenbaum, Admiralty & Maritime Law at 760-64
(2d ed. 1994).
Rule 6 of the Inland Navigational Rules provides, in pertinent part:
Every vessel shall at all times proceed at a safe speed so that she can take proper and
effective action to avoid collision and be stopped within a distance appropriate to the
prevailing circumstances and conditions. In determining a safe speed the following
factors shall be among those taken into account:
(a) By all vessels:
(i) The state of visibility;
(ii) The traffic density including concentration of fishing vessels or any other
(iii) The maneuverability of the vessel with special reference to stopping distance
and turning ability in the prevailing conditions;
(iv) At night, the presence of background light such as from shore lights or from
back scatter of her own lights;
(v) The state of wind, sea, and current, and the proximity of navigational hazards;
(vi) The draft in relation to the available depth of water.
33 C.F.R. § 83.06.
Captain Trout violated Rule 6 in that he failed to proceed at a safe speed as he rounded
Wilkerson Point and approached the US 190 bridge. The use of radar, in and of itself, is not
sufficient to exempt a vessel from proceeding at a safe speed. N.V. STOOMVAART
MAATSCHAPPIJ v. Standard Oil Co. of California, 398 F.2d 835 (9th Cir.1968), cert. denied,
393 U.S. 980 (1968).
In order [to be found] to travel at a safe rate of speed, a vessel should be able to stop
within one-half the distance of visibility forward from her bow. Holland-America Line v. M/V
JOHS. STOVE, 1968 A.M.C. 2012, 2016 (S.D.N.Y.1968).When conditions are such that a vessel
cannot proceed in such fashion, she should not be underway in the first place. The
PENNSYLVANIA, 86 U.S. (19 Wall.) 125, 134 (1873).
Rule 7 of the Inland Navigational Rules, 33 C.F.R. § 83.07, provides in pertinent part:
(a) Every vessel shall use all available means appropriate to the prevailing circumstances
and conditions to determine if risk of collision exists. If there is any doubt such risk shall
be deemed to exist.
(b) Proper use shall be made of radar equipment if fitted and operational, including
longrange scanning to obtain early warning of risk of collision and radar plotting or
equivalent systematic observation of detected objects.
(c) Assumption shall not be made on the basis of scanty information, especially scanty
(d) In determining if risk of collision exists the following considerations shall be among
those taken into account:
(i) Such risk shall be deemed to exist if the compass bearing of an approaching
vessel does not appreciably change.
(ii) Such risk may sometimes exist even when an appreciable bearing change is
evident, particularly when approaching a very large vessel or a tow or when
approaching a vessel at close range.
Captain Trout violated Rule 7 by failing to use all appropriate means to determine
whether a risk of allision existed, and to take appropriate, timely, and responsive action to avoid
the allision. Marquette had previously sent a Notice of Marine Hazards regarding the CEMUS
dock construction site. Captain Trout failed to read this Notice of Marine Hazards provided by
Marquette to alert captains about the hazard.
33 C.F.R. § 83.09 Rule 9(a)(i) regarding Narrow channels requires “[a] vessel proceeding
along the course of a narrow channel or fairway [to] keep as near to the outer limit of the channel
or fairway which lies on her starboard side as is safe and practicable.” “Although the [Inland
Navigation Rules] do not define ‘narrow channel,’ we have held that the term generally includes
bodies of water that are less than 1,000 feet in width.” Mike Hooks Dredging Co. v. Marquette
Transp. Gulf-Inland, L.L.C., 716 F.3d 886, 892 (5th Cir. 2013).
Under Rule 9, the M/V Myra Eckstein was obligated to stay as far to her starboard as was
“safe and practicable.” She failed to do so; had she done so, the allision would not have occurred.
Captain Trout was “way more off” pier number 2 than he wanted to be.” He was too deep in the
bend as he rounded Wilkerson Point and was distracted by the barges working on the CEMUS
dock and failed to navigate closer to Pier 2 of the 190 bridge.
The M/V MYRA ECKSTEIN navigated in an unsafe manner by steering outside the
navigable channel when she could have steered closed to pier number 2. Captain Trout
admittedly violated Inland Rules 6, 7, and 9. Captain Trout was negligent in failing to pay close
attention while manning the M/V MYRA ECKSTEIN; Captain Trout’s negligent operation of
the M/V MYRA ECKSTEIN was a cause of Joseph Solomon’s injuries.
“To establish a claim for unseaworthiness, ‘the injured seaman must prove that [his
employer] has failed to provide a vessel, including her equipment and crew, which is reasonably
fit and safe for the purposes for which it was intended to be used.’” Boudreaux v. United States,
280 F.3d 461, 468 (5th Cir. 2002) (quoting Jackson v. OMI Corp., 245 F.3d 525, 527 (5th Cir.
2001)). This also gives rise to a claim for negligence under the Jones Act. “The standard is not
perfection, but reasonable fitness; not a ship that will weather every conceivable storm but a
vessel reasonably suited for her intended service.” Simmons v. Transocean Offshore Deepwater
Drilling, Inc., 551 F. Supp. 2d 471, 476 (E.D. La. 2008).
A vessel’s condition of unseaworthiness might arise from any number of
circumstances. Her gear might be defective, her appurtenances in disrepair, her
crew unfit. The number of men assigned to perform a shipboard task might be
insufficient. The method of loading her cargo, or the manner of its stowage, might
Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 499-500 (1971) (internal citations omitted).
A vessel is unseaworthy when an unsafe method of work is used to perform vessel services.
Rogers v. Eagle Offshore Drilling Serv., 764 F.2d 300, 303 (5th Cir. 1985). The duty of the
vessel owner to provide a seaworthy vessel is an absolute non-delegable duty. A breach of this
duty when an employer knew or should have known of the unsafe method also gives rise to a
negligence claim under the Jones Act.
To recover damages from an unseaworthy condition, or from negligence, the plaintiff is
required to establish a causal connection between his injury and the breach of duty that rendered
the vessel unseaworthy or resulted in negligence. See Gavagan v. United States, 955 F.2d 1016,
1020 (5th Cir. 1992). “To establish the requisite proximate cause in an unseaworthiness claim, a
plaintiff must prove that the unseaworthy condition played a substantial part in bringing about or
actually causing the injury and that the injury was either a direct result or a reasonably probable
consequence of the unseaworthiness.” Johnson v. Offshore Exp., Inc., 845 F.2d 1347, 1354 (5th
Cir. 1988). In order for a plaintiff to recover for negligence under the Jones Act he must show
that the negligence was a cause, however slight, in producing his injury. See Gautreaux v.
Scurlock Marine, Inc., 107 F.3d 331, 335 (5th Cir. 1997); CSX Transp. Inc. v. McBride, 564 U.S.
685, 692 (2011).
Kostmayer had a non-delegable duty to provide Solomon with a safe place to work and to
provide seaworthy equipment and crew on the vessel. The credible evidence supports the finding
that Kostmayer breached this duty as it failed to properly locate and man its vessel, the MISS
ASHLEY, specifically by failing to provide any warning regarding potential allisions. This
rendered the MISS ASHLEY unseaworthy and also resulted in negligence which was a cause of
the allision on December 29, 2015 and Solomon’s injuries.
The Court hereby concludes that the MISS ASHLEY was unseaworthy and Plaintiff's
injuries and resulting damages were proximately caused by the vessel’s unseaworthiness, as well
as the Kostmayer’s negligence in failing to provide him with a safe place to work.
It is a fundamental rule in admiralty law that damages “are to be apportioned on the basis
of the comparative fault of the parties.” Pennzoil Producing Co. v. Offshore Express Inc., 943
F.2d 1465, 1469 (5th Cir. 1991). Liability for property damages sustained in this maritime
collision must be allocated according to the degree of the parties’ comparative fault, this is so
even where one party is guilty of statutory violations. Florida East Coast Ry. v. Revilo Corp.,
637 F.2d 1060, 1066–67 (5th Cir.1981). District courts have considerable discretion in assigning
comparative fault. Analyzing all the evidence presented, it comes to a conclusion based upon the
number and quality of the faults of each party, and the part they played in causing the casualty.
See, e.g., United Overseas Export Lines, Inc. v. Medluck Compania Maviera, 785 F.2d 1320,
1326 (5th Cir. 1986) (affirming district court’s sixty-five percent/ thirty-five percent
apportionment of fault); Gele v. Wilson, 616 F.2d 146, 148 (5th Cir. 1980) (“The calibration of
culpability is simply not susceptible to any real precision.”).
The allision was caused by the combined fault of Marquette and Kostmayer. The Court
finds that as to damages to the barges and dock, Marquette is 80% liable and Kostmayer is 20%
liable. As to Solomon’s damages, Marquette is 50% liable and Kostmayer is 50% liable.
New Orleans, Louisiana, this 14th day of February, 2018
UNITED STATES DISTRICT JUDGE
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